What is at issue instead is Franklin's mind. Franklin claims that in determining that he was not disabled the ALJ failed to properly account for Franklin's mental impairment. Franklin has personality and abuse disorders resulting in depression and other features that affect his ability to relate to others in a work setting.
To assess the functional limitations flowing from those disorders, the ALJ filled out the standard form called for by Reg. § 404.1520a (R.18-20). Dr. John L. Peggau, a licensed psychologist who examined Franklin at his lawyer's request, filled out a slightly different version of the same form (Ex. 20 at R. 151-71 is Dr. Peggau's written report, including that form). What follows reflects ALJ Welsch's and Dr. Peggau's different views (respectively indicated by "W" and "P") as to the extent to which Franklin's mental impairment affects his abilities in four key areas related to work:
1. Restriction of Activities of Daily Living:
None Slight Moderate Marked Extreme
[ ] [W] [P] [ ] [ ]
2. Difficulties in Maintaining Social Functioning:
None Slight Moderate Marked Extreme
[ ] [ ] [W/P] [ ] [ ]
3. Deficiencies of Concentration, Persistence or Pace:
Never Seldom Often Frequently Constantly
[ ] [ ] [W/P] [ ] [ ]
4. Episodes of Deterioration or Decompensation:
Never Once/Twice Repeated Continual
[ ] [W] [P] [ ]

ALJ Welsch's opinion said "this form has been prepared in a fashion consistent with the assessment of Dr. John L. Peggau, as well as the record as a whole" (R.14) and then explained each of her own marks (R.15):

The claimant said he has been arrested at least ten times and gets into fights when he has been drinking. He describes himself as a loner. He does, however, maintain relationships with a fiance. He also has a friend that he drinks with. He has contact with his mother and sister. Although the claimant may have difficulties in social functioning, the undersigned cannot find that he has more than moderate impairment.

The claimant alleges difficulty with concentration, persistence and pace. Testing by Dr. Peggau indicated that the claimant may, indeed, have such difficulties. The claimant does, however, live independently. He is able to engage in hustling and in acquiring odd jobs. The undersigned finds that the claimant at most would often have deficiencies of concentration, persistence and pace.

The claimant told the doctor that he had been fired from a job; however, he did not indicate that this problem was due to his drinking or drug use. He said he was fired because he was tardy and he blamed his tardiness on his daughter. He said, however, that he has been in fights because of his drinking. He admitted that he had been arrested ten times. The undersigned can find at most that the claimant has had one or two episodes of deterioration or decompensation in the workplace.

After finding that Franklin failed to qualify for any listed impairment, the ALJ proceeded with the familiar five-step process used to evaluate disability claims (Reg. § 404.1520; Young v. Secretary of HHS, 957 F.2d 386, 389 (7th Cir.1992)). At steps 4 and 5 she performed a residual functional capacity ("RFC") analysis to determine whether Franklin's combined physical and mental impairments rendered him incapable of returning to his past relevant work as a forklift and brake press operator
*fn5"
or of finding other work in the economy. To assist in that determination the ALJ asked Vocational Expert ("VE") William Fischer (R.57):

Q: All right, Dr. Fischer, I'm going to ask you a hypothetical question, and I ask that you please disregard any information you may have gathered from reading the file or listening to the testimony, other than that which I give you specifically in the hypothetical. I would like you to assume an individual who is 42 years old with an 11th grade education, who has past relevant work the same as Mr. Franklin, who has an exertional capacity limited to the full range of medium work with the following exceptions. Individual who has an IQ as stated in the file, let's see, it was full scale IQ of 81, performance 85 and verbal of 78. And an individual who would also be limited in that they would have, an individual who could not have constant interaction with others. Can frequently interact with others, but work would be fairly independent. Tasks would be assigned and the individual could do that without constantly interacting with others. And by others I mean coworkers, supervisors and the general public. How would these restrictions effect [sic] the performance of past relevant work?

In response the VE said that such an individual could operate both a forklift and a brake press (R.57-58). Next the ALJ asked what light or sedentary unskilled entry level work such a person could perform in the economy generally (R.58), and the VE estimated that there were approximately 33,000 jobs in the immediate area (10,000 cleaning, 8,000 laundry, 15,000 assembly) suitable for a person with physical and mental restrictions as described (R.58-60).

Franklin's lawyer then sought to pose a different hypothetical question. After several permutations, the question was recast most clearly by the ALJ and answered in these terms (R.61-62)

VE: Oh, okay. Based on all this information in Exhibit 20, my opinion is that the employer would have to make special concessions or considerations for the employee, because of those limitations and residual function capacities. And when that happens, it means that the employment is sympathetic. And sympathetic employment doesn't exist in significant numbers in the local or national economy.

ALJ Welsch concluded that given Franklin's age, education, past work experience and RFC, he could perform his past relevant work as a fork lift and brake press operator or other light or medium work in the economy (cleaning, laundry, assembly). Hence he was found not disabled.

ALJ's Rejection of Dr. Peggau's Opinion

Most of the case law in this area deals with the weight to be ascribed to the opinions of medical doctors (hence the often-repeated admonition that no ALJ should attempt to "play doctor"). Psychologists such as Dr. Peggau do not have M.D. degrees and cannot prescribe medication--but because the Regulations do speak of such professionals as "acceptable medical sources" and because the same legal principles should apply to their opinions, this Court will follow that lead. With apologies to purists, then, this opinion will also occasionally use the term "medical" in that broadened sense.

Franklin claims that by forming an independent judgment about the nature and severity of his mental impairment the ALJ improperly substituted her own untrained opinion for that of Dr. Peggau, the only licensed psychologist who examined Franklin. Franklin's Mem. 12 urges:

1. "By substituting her own judgment as to the psychological impairment and limitations the ALJ committed an error of law."

2. "The ALJ's findings are not supported by the record on the whole."

That first proposition misstates the law, while the second fails in light of the Administrative Record and the applicable standard of review.

As indicated earlier, Reg. § 404.1527(a)(2) defines "medical opinions" as "statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including [] symptoms, diagnosis and prognosis, and what you can still do despite impairment(s), and your physical or mental restrictions." Reg. § 404.1527(b) provides that medical opinions will be considered together with other relevant evidence in determining disability.

Reg. §§ 404.1527(c) and (d) set the standards for evaluating such opinion evidence. If the source is a treating physician
*fn7"
and the opinion itself is both well-supported and consistent with the other evidence, it is assigned controlling weight (Reg. § 404.1527(d)(2)). Otherwise the ALJ must decide what weight to assign, considering several listed factors (including (i) the existence, nature and extent of any treatment or examining relationship; (ii) the extent to which the opinion is supported by medical evidence and is consistent with record as a whole; and (iii) whether the opinion is rendered in an area of specialty) (Reg. § 404.1527(d)). Reg. § 404.1527(e)(2) specifies that when a medical opinion is offered in the critical areas of listed impairment, RFC, application of vocational factors and the ultimate question of disability, the ALJ is not bound by that opinion. Instead the "final responsibility for deciding these issues is reserved to the Secretary" (and through her to the ALJ, see Reg. § 404.1546).

more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

That test is not very demanding. It is thus understandable that Ehrhart v. Secretary of HHS, 969 F.2d 534, 538 (7th Cir. 1992) (citations omitted) frames the reviewing court's function in these terms:

We may not reweigh the evidence or decide whether a claimant is disabled. Nor may the court substitute its own judgment for that of the Secretary. By the same token, we must do more than rubber stamp the decisions of the Secretary.

Accord, Cass v. Shalala, 8 F.3d 552, 554-55 (7th Cir.1993). Consequently an ALJ's determination as to the weight to be assigned to a medical opinion will generally not be disturbed absent some indication that the ALJ has dredged up "specious inconsistencies" ( Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir.1992)) or has relied upon some other intellectually dishonest means to discount any opinion at odds with the ALJ's own findings (see, e.g., Hargis v. Sullivan, 945 F.2d 1482, 1487-88 (10th Cir.1991)).

ALJ Welsch agreed with Dr. Peggau that Franklin has moderate difficulties in maintaining social functioning and often experiences deficiencies of concentration, persistence and pace. She disagreed, however, as to the degree to which Franklin is restricted in his daily activities. Franklin spends 3 to 4 hours a day "hustling" (that is, performing odd jobs for money) (R.46). He cooks, cleans, and shops for himself (R.50). He plays cards and shoots pool (R.51). And the balance of his time is spent drinking (R.52-53). That active daily regimen provides the requisite substantial evidence to support the ALJ's conclusion that despite his mental impairments Franklin is only slightly restricted.

ALJ Welsch also disagreed with Dr. Peggau as to the number of times per week that Franklin was likely to deteriorate or decompensate at work. Franklin admits to downing four quarts of wine and three to four 40-ounce bottles of beer a day and understandably exhibits signs of severe alcohol addiction (the "shakes," blackouts, hearing voices) (R.45, 52, 54, 154, 157). He supplements his liquid diet with four to five grams of cocaine per week (R.45). In combination with a quick temper, his heavy drinking makes it difficult for Franklin to get along with others (R.37). Franklin stated that he gets into fights while drunk and has been arrested a number of times for disorderly conduct (R. 54, 157).

Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.

Buy This Entire Record For
$7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.